Citation NR: 9729681
Decision Date: 08/28/97 Archive Date: 09/04/97
DOCKET NO. 95-06 457 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to a total and permanent rating for pension
purposes.
ATTORNEY FOR THE BOARD
S. M. Peace, Associate Counsel
INTRODUCTION
The veteran had active military service from June 1974 to
December 1974.
This matter came before the Board of Veterans’ Appeals
(Board) on appeal from a March 1994 rating decision of the
Atlanta, Georgia, Regional Office (RO) of the Department of
Veterans Affairs (VA). A notice of disagreement was received
in April 1994. The statement of the case was issued in May
1994. A substantive appeal was submitted in February 1995.
The record reflects that the veteran requested to provide
testimony before a traveling Member of the Board. A hearing
was scheduled; however, the veteran failed to report.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he is unable to maintain gainful
employment as a result of his physical disability.
Specifically, the veteran claims that as a result of
blindness in the left eye, his right eye has to
overcompensate which causes him significant right eye strain,
pain, burning and blurred vision.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for a permanent and total
disability rating for pension purposes.
FINDINGS OF FACT
1. The veteran was born in July 1950, completed three years
of high school.
2. The veteran worked infrequently over the years; he was
last employed in 1992 in hotel maintenance.
3. The veteran's disabilities consist of status post
enucleation of the left eye with corneal scar and refractive
error of the right eye, rated 50 percent disabling; and
bilateral testicular atrophy, rated 20 percent disabling, for
a combined 60 percent evaluation.
4. The veteran's non-service connected disabilities are not
so severe that they currently preclude him from following all
types of substantially gainful employment.
CONCLUSION OF LAW
The veteran is not permanently and totally disabled within
the meaning of governing law and regulations. 38 U.S.C.A. §§
1155, 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(2),
3.340(b), 3.342, 4.1, 4.2, 4.7, 4.10, 4.16, 4.17, 4.40,
Diagnostic Codes 6065, 7523 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. FACTUAL BACKGROUND.
The record reflected that the veteran was enlisted into the
United States Army in June 1974. The entrance examination
noted that the veteran had coloboma of the right pupil.
However, it was not considered disabling. The duration of
the veteran’s military service was very limited, and he was
discharged in December 1974.
In February 1993, the veteran proffered an application and
private treatment records in support of his claim for non-
service connected pension benefits. The veteran was born in
July 1950. He completed three years of high school prior to
his induction into the military. He had been married, but
was now divorced. He had fathered two children as a result
of the aforementioned union.
Private medical evidence from Craven County Hospital, dated
in October 1975, reported that the veteran was involved in an
automobile accident which caused severe trauma to his left
eye. As a result, the veteran underwent surgical removal of
his left orbit and implantation of a prosthesis. Since that
time, the veteran indicated that he had been unable to work
consistently because of the strain placed on his right eye to
compensate for the total vision loss in his left. He
insisted that he was unable to get through the day without
sharp pain, burning, and blurred vision in the right eye.
Currently, the veteran reported that he resides with his
family and was dependent on them for financial support.
A VA examination was conducted in August 1993. It was noted
that the veteran had a visual acuity of 20/50, correctible to
20/30, in the right eye, and a prosthesis in the left. Slip
lamp examination revealed right eye scarring horizontally at
the center and inferiorly. There was full mobility in the
visual field of the right eye. Diagnoses of corneal scarring
in the right eye and prosthetic left eye due to trauma were
recorded.
Another VA examination was performed in January 1994. The
examination report provided an overview of the veteran’s post
service medical history. He denied any history of
hypertension or diabetes mellitus. Other than his eye
disability, he made no further medical complaints. The
objective findings revealed that overall the physical
condition of the veteran was within normal limits. His skin
was clear. The lymphatics/hematic were negative. His head,
eyes, ears, nose and throat were unremarkable. There was an
enucleation of the left orbit. Distant vision in the right
eye was 20/60 without glasses, and 20/50 with glasses. An
anterior stromal corneal scar was present on the right pupil.
There were normal extraocular movements present upon
inspection of the right eye. The cardiovascular,
respiratory, and endocrine systems were normal. The abdomen
was soft and nontender, and the liver and spleen were not
felt. The rectal examination was normal with no lesions or
hernias. The testicles were 1 cm in diameter with a mushy
consistency. The prostate was benign. No significant
musculoskeletal defects were noted. In addition, a
psychiatric evaluation concluded that no psychiatric
condition was found and the veteran was competent. The
veteran related that he had had several jobs since leaving
the service, and was last employed in hotel maintenance in
1992. Diagnoses of enucleation of the left orbit, post
trauma, anophthalmos of the left eye, corneal scar and
refractive error of the right eye, and bilateral testicular
atrophy were given.
In a March 1994 rating action, the RO determined that the
veteran failed to meet the necessary requirements for a total
rating for pension purposes.
II. LEGAL ANALYSIS.
The Board finds that the veteran's claim is "well-grounded"
within the meaning of 38 U.S.C.A. § 5107(a). That is, the
Board finds that he has presented a claim which is plausible.
We are also satisfied that all relevant facts have been
properly developed, and that no further development is
necessary to comply with the duty to assist the veteran
mandated by 38 U.S.C.A. § 5107(a).
VA has a duty to acknowledge and consider all regulations
which are potentially applicable to the assertions at issues
raised in the record, and to explain the reasons and bases
for its conclusion. Schafrath v. Derwinski, 1 Vet.App. 589
(1991). 38 C.F.R. § 4.1 requires that each disability be
viewed in relation to its history and that there be emphasis
upon the limitation of activity imposed by the disabling
condition. 38 C.F.R. § 4.2 requires that medical reports be
interpreted in light of the whole recorded history, and that
each disability must be considered from the point of view of
the veteran working or seeking work. 38 C.F.R. § 4.7
provides that, where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.10 provides that, in
cases of functional impairment, evaluations must be based
upon lack of usefulness of the affected part or systems, and
medical examiners must furnish, in addition to the
etiological, anatomical, pathological, laboratory, and
prognostic data required for ordinary medical classification,
full description of the effects of the disability upon the
person's ordinary activity.
The status of the right eye disability has been evaluated
under Diagnostic Code 6065 of the VA Rating Schedule. Under
the code, where there has been an anatomical loss of one eye,
and visual acuity of 20/70 in the other eye, a 50 percent
rating can be assigned.
In the January 1994 VA examination, it is noted that the
visual acuity of the right eye, uncorrected, is 20/60. There
is no showing that the manifestations of the veteran’s right
eye disability requires a higher evaluation. Therefore, the
present 50 percent evaluation more closely approximates the
current right eye disability.
As for the testicular atrophy, Diagnostic Code 7523 provides
that where there is atrophy of both testicles, a 20 percent
evaluation is given. Presently, the veteran’s testicular
condition is rated at the maximum 20 percent. No evidence
has been offered to show that there has been a change or
increased in the condition to possible warrant a higher
evaluation under a related diagnostic code. After a review
of the 1993 and 1994 VA examinations, the Board finds that
the veteran’s disorders have been accurately rated.
The law authorizes payment of pension to a veteran of a war
who has the requisite service and who is permanently and
totally disabled. 38 U.S.C.A. § 1521 (West 1991). An
individual is considered permanently and totally disabled if
that individual is unemployable as a result of a disability
reasonably certain to continue throughout his life
(individual unemployability standard), or if the individual
suffers from a disability that would render it impossible for
the average person to follow a substantially gainful
occupation (average person standard). 38 U.S.C.A.
§ 1502(a)(West 1991). The regulations governing application
of the two standards are found at 38 C.F.R. § 3.321(b)(2),
3.340, 3.342, 4.15, 4.16, and 4.17 (1996).
In applying the “average person” test of 38 U.S.C.A.
§ 1502(a)(1) and 38 C.F.R. § 4.15 to this veteran’s total
disability evaluation, it is clear that this veteran does not
meet the schedular requirements for disability sufficient to
render it impossible for the average personal to follow a
substantially gainful occupation. His disabilities have been
rated a combined 60 percent. Under the average person
standard, total disability will be considered to exist when
there is a present “any impairment of mind or body which is
sufficient to render it impossible for the average person to
follow a substantially occupation.” 38 C.F.R. § 4.15(1996).
The following are considered to be permanent and total
disability: the permanent loss of the use of both hands, or
of both feet, or of one hand or one foot, or of the sight in
both eyes, or becoming permanently helpless or permanently
bedridden. The veteran does not suffer from the listed
disability combinations and does not qualify under 38 C.F.R.
§ 4.15 for a permanent and total disability rating.
If a claimant does not meet the objective criteria for
pension entitlement, other provisions permit an award of
pension if he meets subjective criteria. Whereas the inquiry
in determining objective entitlement is whether the
claimant's disabilities would render the average man
incapable of employment (that is, establishes average
impairment of earning capacity under the standards found in
the VA rating schedule), the subjective standard of
entitlement involves consideration of whether the
disabilities are so incapacitating as to preclude this
particular claimant from performing substantially gainful
employment.
The subjective standard mandate of § 1521(a) is created by 38
C.F.R. § 4.17 and § 3.321(b)(2). 38 C.F.R. § 4.17 provides
that:
All veterans who are basically eligible
and who are unable to secure and follow a
substantially gainful occupation by
reason of disabilities which are likely
to be permanent shall be rated as
permanently and totally disabled. For
the purpose of pension, the permanence of
the percentage requirements of § 4.16 is
a requisite. When the percentage
requirements are met, and the
disabilities involved are of a permanent
nature, a rating of permanent and total
disability will be assigned if the
veteran is found to be unable to secure
and follow substantially gainful
employment by reason of such disability.
The percentage requirements for pension stated in 38 C.F.R. §
4.16 are as follows:
Total disability ratings may be assigned
where the schedular rating is less than
total when the disabled person is unable
to secure or follow a substantially
gainful occupation as a result of service
connected disabilities: provided that, if
there is only one such disability, this
disability shall be ratable at 60 percent
or more, and that, if there are two or
more disabilities, there shall be at
least one disability ratable at 40
percent or more, and sufficient
additional disability to bring the
combined rating to 70 percent or more.
In this case, the veteran's non-service connected
disabilities combine to only 60 percent; therefore, the
percentage threshold is not be met. See 38 C.F.R. § 4.25
(1996).
It remains to be considered whether the veteran would be
considered permanently and totally disabled under 38 C.F.R.
§ 3.321(b)(2). This regulation provides that an extra-
schedular evaluation is warranted for an individual who does
not meet the percentage standards of the rating schedule, but
who is unemployable by reason of disabilities such as age,
occupational background, and other related factors. In such
cases, an extra-schedular rating of permanent and total
disability for pension purposes may be granted.
Applying the extraschedular criteria in the instant case
provides a basis for favorable action when the veteran is
given the benefit of the doubt. The evidence of record
documents that the veteran was born in July 1950, and is 47
years old. He has completed three years of high school and
has been employed over the years as a laborer. The veteran
has indicated that he has not worked since 1992. The Board
finds that the veteran is considered a relatively young man
with many employable years remaining. A review of the
clinical evidence fails to show that he is unemployable as a
result of his eye disability. Specifically, the veteran may
not be able to perform tasks requiring intensive use of his
eyes, but there is no impediment to physical tasks using his
arms and legs for lifting and other related responsibilities.
His testicular atrophy is not shown to have any effect on his
employability. When all the factors are considered, the
evidence is not in equipoise as to the question of whether
the veteran is capable of obtaining and retaining
substantially gainful employment. Therefore, the benefit of
the doubt is not applicable.
ORDER
Entitlement to a permanent and total disability rating for
pension purposes is denied.
J. E. DAY
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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